Last week the Ontario Court of Appeal released its highly
anticipated decision in the Blue Mountain Resorts case, which we
had previously discussed
here. The Court allowed the appeal and overturned the decision
of the Ontario Labour Relations Board which had been upheld by the
Divisional Court, finding the OLRB's interpretation of the
OHSA unreasonable. Ultimately, the Court of Appeal held that
employers are not required to report every critical injury or death
of a person at a workplace, but rather only those where the hazard
giving rise to the death or critical injury poses a realistic risk
to worker safety.
The case involved the drowning of a Blue Mountain guest in an
unsupervised swimming pool. Blue Mountain did not report the death
to the Ministry of Labour, as it did not deem the swimming pool to
be a "workplace" and the drowning did not involve a
worker. A Ministry of Labour inspector disagreed, and ordered
Blue Mountain to report the fatality. Blue Mountain appealed
the order, but the OLRB agreed with the inspector and the order was
upheld. On judicial review, the Divisional Court found the
OLRB's determination that the unsupervised swimming pool was a
"workplace" to be reasonable, and upheld the OLRB's
decision. Further details regarding the Divisional
Court's decision can be found in our prior post
Blue Mountain appealed to the Court of Appeal, arguing that it
was not required to report the fatality because the facility is not
predominately a workplace and a worker was not present at the site
when the drowning occurred.
The Court of Appeal agreed. It conducted a purposive and
contextual review of the applicable language of the OHSA that
required notification "where a person is killed or critically
injured from any cause at a workplace", and determined that
the interpretation of the OLRB and Divisional Court would deem
virtually every place in Ontario, whether commercial, industrial,
private or domestic, a "workplace" because a worker may
be present at some point. This interpretation led to the
absurd conclusion that every death or critical injury to anyone,
anywhere, whatever the cause, must be reported to the Ministry of
Labour. In fact, counsel for the Ministry conceded before the
Board that based on the Ministry's interpretation, no location,
aside from an abandoned woodlot, would be free from the
notification and reporting requirement.
The Court of Appeal went on to provide its interpretation,
stating that an employer's notification and reporting
obligations are engaged where:
a worker or non-worker (a person) is killed or critically
the death or critical injury occurs at a place where (i) a
worker is carrying out his or her employment duties at the time the
incident occurs, or, (ii) a place where a worker might reasonably
be expected to be carrying out such duties in the ordinary course
of his or her work (workplace); and
there is some reasonable nexus between the hazard giving rise
to the death or critical injury and a realistic risk to worker
safety at that workplace (from any cause).
Essentially, the Court held that a proper interpretation of the
OHSA required there to be some reasonable nexus between the hazard
giving rise to the death or critical injury and a realistic risk to
worker safety at the site. Applying the test to the
circumstances at hand, the drowning of a guest at Blue
Mountain's unsupervised swimming pool would not trigger
notification and reporting obligations, as the hazard giving rise
to the death, drowning, did not pose a realistic risk to the safety
of any Blue Mountain workers.
This decision is valuable, in that the Court of Appeal utilized
practical and common sense reasoning to overturn an interpretation
that was incongruous with the realities of the
workplace. Moving forward, we encourage Ontario
employers to apply the foregoing test to those critical injuries or
deaths occurring on their premises to non-workers, to ensure that
they are meeting their notification and reporting obligations under
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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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